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Willis, John Walpole (1793–1877)

John Walpole Willis (1793-1877), judge, was born on 4 January 1793, the second son of Captain William Willis (d.1809) of the 13th Dragoons and his wife Mary (d.1831), the only daughter and heiress of Robert Hamilton Smith, of Lismore, County Down, Ireland. Statements by Thomas McCombie, Garryowen and others that he was the son of Dr Francis Willis (1718-1807), the clergyman-physician who treated George III during his first attack of madness, are mistaken.

Willis attended Rugby and Charterhouse, from which he was expelled in 1809. Admitted to Gray's Inn on 4 November 1811, he was called to the Bar in 1816 and joined the northern circuit in 1817. He was admitted fellow commoner at Trinity Hall, Cambridge, on 28 November 1820. In 1816 he published Digest of Rules and Practice as to Interrogatories for the Examination of Witnesses, in 1820 Pleadings in Equity Illustrative of Lord Redesdale's Treatise on the Pleadings in Suits in Chancery by English Bill, and in 1827 Duties and Responsibilities of Trustees.

In 1827 the British government planned to establish a court of equity for Upper Canada. Willis was nominated as the equity judge and in 1827 went with his family to take up his duties. He presented the warrant for his appointment to the lieutenant-governor, Sir Peregrine Maitland, in September 1827, but he met with opposition from the governor and his advisers and the legal profession, and was soon in conflict with the law officers. The chief justice of Upper Canada was away and Willis declined to sit in banco, declaring openly his judicial opinion, which was probably sound, that because of the language of the Act creating it, the court could not sit in banco in the absence of the chief justice. Invoking the Act, 22 Geo. III, c. 75, the governor, without calling on Willis to show cause, amoved him from office. The House of Assembly of Upper Canada in 1829 voted an address to the King praying for Willis's reinstatement. Willis went to London to seek redress, and the Privy Council, without giving reasons, at first affirmed the amotion, but later reconsidered the matter, and the order amoving him was set aside on the ground that Willis had been entitled to a hearing before the order was made. In 1831 the secretary of state for the colonies declared, in respect of these events, that Willis's 'personal honour and integrity were free from reproach'. In 1831 he was appointed vice-president of the Court of Civil and Criminal Justice of British Guiana. He devoted himself with great energy and success to his duties. Though often at variance with his colleagues, he expected, on the retirement of Chief Justice Wray in November 1835, to be appointed to the vacancy, but was passed over. In February 1836 his health failed and he returned to England on furlough. As he was preparing to leave in 1837 to resume his duties at Demerara, West Indies, he was appointed a judge of the Supreme Court of New South Wales. He arrived in Sydney in February 1838.

His health was still poor, according to medical opinion, because of a 'functional derangement of the liver'. In a long letter to Sir George Gipps on 30 March 1839 he gave his version of his activities in Upper Canada and British Guiana, asserting unfair treatment by the British authorities in the matter of salary, allowances and expenses, and asking for 'fair consideration to a claim to reasonable retirement'. Gipps forwarded the letter to London stating his fear that Mr Justice Willis's health rendered it improbable that he could long continue to perform efficiently the duties of the bench, but that, in view of the shortness of Willis's services in New South Wales, he would not recommend any portion of his retiring allowance to be charged to the revenue of the colony. Willis quarrelled with the chief justice, Sir James Dowling and, when it was decided to appoint a resident judge for the judicial district of Port Phillip, Gipps selected Willis, the purpose being to get him away from Sydney and thus end the friction with Dowling.

Willis arrived at Melbourne on 10 March 1841. His court-room was a small brick building at the south-west corner of Bourke and King Streets. The Supreme Court opened its sittings on 12 April 1841, and the resident judge was soon in conflict with the Bar and influential citizens. He refused to hear a solicitor who wore a moustache, and he rebuked a barrister who owned a stallion and advertised its services. When he cast doubts on the integrity of the Crown prosecutor because he had given an accommodation bill, the Bar walked out of court. He was in constant conflict with the Port Phillip Gazette and the Herald, and imposed severe punishment, later remitted on George Arden, the editor of the Gazette, for contempt of court. In a dispatch, 13 October 1842, Gipps expressed the opinion that Willis, because of an infirmity of temper, was unfit for 'the calm and dispassionate administration of justice', and stated that the town of Melbourne had been 'kept in a state of continued excitement by the proceedings of Mr Justice Willis and the extraordinary nature of the harangues he is in the habit of delivering from the Bench'. Gipps thought, too, that Willis had discreditably suppressed the truth concerning a loan made by him to John Pascoe Fawkner, proprietor of the Port Phillip Patriot. In 1843 Willis ordered that a prominent citizen, Jonathan Were, be imprisoned for prevarication, adding a month at each protest by the witness, until the sentence, which was not served, was six months imprisonment. By this time Willis had incurred the enmity of powerful interests in Melbourne, and it is said that four different memorials, one bearing 523 names and endorsed by the superintendent, Charles La Trobe, were sent to Gipps praying that Willis should be recalled. Gipps amoved Willis from office by an order dated 17 June 1843. As in Canada, Willis was given no hearing before the order was made. Willis first knew of it when on 24 June he was called from court and handed the order. The executive's action was not universally popular; the Port Phillip Patriot demanded that Judge Willis should not 'be sacrificed to gratify the despicable clique from whose tyranny His Honour had rescued the community', and resolutions of protest were adopted at a public meeting. More significantly, the Gazette, whose editor Willis had treated harshly, found reason to commend Willis, observing 'that schemes of villainy have been unravelled in his court, that intrigues and even plans of glaring depravity have been exposed by him … We like him the better that he has never administered one kind of justice to the rich and another kind to the poor'.

On his return to England Willis presented a petition to the Privy Council, and finally on 8 July 1846 a report was made stating there were sufficient grounds for amoving Willis, but that the governor and council ought to have given him some opportunity of being previously heard, and that the order of 17 June 1843 should be reversed. He was paid arrears of salary and costs amounting to a substantial sum, but he received no further judicial appointment. In 1850 he published On the Government of British Colonies, in which he propounded a completely unacceptable scheme of colonial government. He died in England on 10 September 1877.

Willis married twice. The first marriage, on 8 August 1824, to Mary Isabella, elder daughter of Thomas Bowes-Lyon, eleventh earl of Strathmore, was dissolved by Act of parliament in 1833. There was one child, Robert Bruce (1826-1897). On 15 September 1836 he married Ann Susanna Kent (d.1891), the eldest daughter of Colonel Thomas Henry Bund; they had one son and two daughters.

Willis was an able lawyer, honest and fearless, and alert to prevent fraud and oppression, but he lacked the judicial temperament. Contentious and irascible, he could not work in harmony with the executive or with his colleagues, and once involved in a controversy his methods were often dubious. By the time he reached Australia his unfortunate personal limitations were aggravated by serious and chronic ill health. His temperament and outlook led inevitably to clashes with powerful sections which in his view were intent only on furthering their own interests. While the evidence of his cantankerousness and lack of judicial courtesy during his brief period in Melbourne is overwhelming, it must in fairness be said that often his censures were justified, and a contemporary historian, McCombie, took a not unfavourable view of his judicial activities. His notebooks during his Melbourne residence, which are in the possession of the Royal Historical Society of Victoria, reveal him to have been a diligent and competent lawyer.

Select Bibliography

Historical Records of Australia, series 1, vols 19-22

E. F. Moore, Reports, vol 5, p 379

T. McCombie, The History of the Colony of Victoria (Melb, 1858)

J. L. Forde, The Story of the Bar of Victoria (Melb, no date)

R. Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (Lond, 1863)

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Citation details

John V. Barry, 'Willis, John Walpole (1793–1877)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/willis-john-walpole-2797/text3989, published first in hardcopy 1967, accessed online 4 March 2015.

This article was first published in hardcopy in Australian Dictionary of Biography, Volume 2, (MUP), 1967